HB 76 ~ O.C.G.A. §15-6-67 “The Georgia Plat and Condominium Plan Recording Act of 2017”

House Bill 76 (HB76) was introduced into the 2016/2017 legislative session in hopes to undo many of the unintended consequences of House Bill 1004 (HB1004) of the 2015/2016 legislative session. Like HB1004, under HB76 plats will be recorded electronically through the GSCCCA e-file portal process and still require the three inch square box located in the upper left hand corner of all plats, reserved for the recording information to be inserted by the Clerk of the Superior Court. Under HB76, the Surveyor now has four certifications to choose from based on the type of survey performed and the process used by the local governing authority for plat approval.

Certification (i) is for the traditional approval process. Hard copies will be submitted to the local governing authority where the local governing authority will review and place their certifications, stamps, and signatures of approval on the face of the plat. The surveyor may release the plat prior to these approvals; however, the plat will need these approvals along with the surveyor’s stamp and signature prior to submitting for recording through the GSCCCA e-file portal process.

Certification (ii) is for the paperless online plat review process. The surveyor shall place an approval table on the face of the plat that contains the name of the local governing authority that approved the plat, the name of the individual who approved the plat, and the date of approval. The surveyor may denote upon the face of the plat, in place of the surveyor’s signature, restrictive language such as “DRAFT – FOR REVIEW PRIOR TO APPROVAL.” Upon approval, the surveyor shall remove such restricting language and place the surveyor’s stamp and signature prior to submitting for recording through the GSCCCA e-file portal process. (Note: Some surveyors may opt to sign the plat along with placing the restrictive language on the face of the plat when submitting to the local governing authorities for approval.)

In 2005, the Attorney General addressed a serious issue with the local governing authorities trying to subvert the public and their right to have their plats recorded. The Attorney General’s opinion was clear that the intent of the 1994-1996 General Assembly was to prevent the local governing authorities from such tactics. House Bill 1004 (HB1004) was in direct conflict with the 1994-1996 General Assembly intent and the 2005 Attorney General’s opinion. Certification (iii) is in response to this conflict and intended to protect the public and their rights to have their retracement plats recorded without undue restrictions from the local governing authorities. Certification (iii) is for retracement surveys that do not subdivide, or create a new parcel, or makes any changes to any real property boundaries. Certification (iii) allows the surveyor to perform a retracement survey along with, if any, the depicting of gores, overlaps, or other parcel delineation related to title issues or deficiencies, and may show existing or proposed easements for utilities or conservation areas. Under Certification (iii), the public shall be entitled to have their plat submitted to the GSCCCA e-file portal process for recording without further review from the local governing authority.

Certification (iv) is for those jurisdictions that do not review or approval plats, or when the local governing authority has issued a resolution, ordinance, or has a policy that approval is not necessary prior to recording. If a platted property lies wholly within such a jurisdiction under Certification (iv), the public shall be entitled to have their plat submitted to the GSCCCA e-file portal process for recording without further review from the local governing authority.

Immediately beneath the certification, the Surveyor shall place his/her signature with the seal within or next to the certification box. The Surveyor’s signature is no longer required over the seal, nor to be in contrasting color of ink.

Along with no mechanism to record a retracement survey without undue restrictions from the local governing authorities, HB1004 had no means for the public to record an existing plat. HB76 has attempted to address this through O.C.G.A. § 15-6-67(3)(i) which states “Any plats or condominium plans prepared prior to May 8, 2017, in compliance with previous statutory requirements may be recorded pursuant to this Code section so long as such documents are submitted as electronic images and presented to the clerk of superior court electronically.” Older plats meeting the statutory requirements at the time of their preparation shall be eligible for recording through the GSCCCA e-file portal process.

Clerk’s Bill to revise how plats are recorded (House Bill 1004 ~ 2015/2016 Regular Session)

Many have concerns about the recent passing and signing into law, of House Bill 1004. Particularly in regard to the effect the law will have. These misgivings come from both the surveyor’s point of view and a property owner’s.

Having reviewed and participated in the legislative process on several bills in the pasted, this House Bill 1004 and its verbiage ranks among the worst I have ever seen. It gives me the impression that the scriber had no understanding of his subject matter.

There are many issues with the legislation which are conspicuously bad, of them the most egregious to me is the Surveyor’s Certificate, which starts at line 63 and runs thru line 79, which is in complete contempt for the Attorney General’s opinion U2005-5 that the Clerks of Court sought and got clarification on in 2005.

No one should be codify something that that can only be addressed through the surveyor’s technical standards, the 180 Rules for Surveying, as set out by the Board for Professional Engineers and Land Surveyors. This is addressed through the Board for Engineers and Land Surveyors requirements of O.C.G.A. §15-6-67(b) and (d), of the State Code. Rather than solving anything, House Bill 1004 has served to create a much bigger problem for the Clerks of the Superior Court, The Local Governing Authorities, The Land Surveyor, and the public at large.

Making a requirement that the Surveyor certify that all applicable laws, codes, and ordinances have been meet constitutes a legal opinion, which surveyors are not qualified to give. As surveyors and professional, we cannot be responsible for, the ordinances that a governing authority might select to governing a project. Additionally, many times projects fall under multiple governing authorities, for which they often conflict with each other.

In 2005, the Attorney General was asked to address a serious issue with local governing authorities trying to subvert the public and their right to have plats recorded. The ruling was clear that the intent of the 1994-1996 General Assembly was to prevent local governing authorities from such tactics. See Unofficial Opinion 20005-5.

He went on to lay out a clear and precise guideline to the Surveying Profession and the Clerks of the Superior Court on how to handle this matter. If the plat meets the guidelines then the plat was to be recorded without the local governing authority added additional restrictions.

Once again a small group has attempted to subvert the public’s right to have their plats put on record by having undue restrictions placed on them by a local governing authority. Land ownership, and the people’s right to own land comes from the State.

Where the local governing authority has the right to planning and zoning, they do not have the right to place an undue burden on the public’s right to land ownership.

We have come across several “lots of recorded” that were approved and recorded at the time of their creation, but due to ever increasing regulations (and some local governing authorities need for power and creative taxing), these lots cannot be re-recorded today under this new law. The public has the right to place their plats on record, whether or not it meets the current flavor of the day as mandated by some local governing authority.

The Kilby Group has added ArcGIS to its suite of software

The Kilby Group has added ArcGIS â 10 Desktop to its suite of software. In addition to being able to collect native GIS (esri) shp file features and attributes using Carlson’s SurvCE in the field, exchanging data with ESRI .shp files and .dwg CAD files using Mapping Specifications for Cad (MSC) with Carslon Survey 2012, we are now able to make maps and analyze geo-referenced data in native GIS formats, build and manage GIS databases utilizing ArcMap and ArcCatalog from the ArcGIS Desktop line of GIS products. We are very excited to be able to offer this new service to our clients and feel this can add value to their projects.

The Kilby Group is a professional land surveying firm established in 1979. Our office is located in the South Hall, Chestnut Mountain community. Thanks to cutting edge technology we have been able to remain small and still successfully complete the most demanding of projects. This has allowed us to give our clients the personal attention that larger firms cannot. For more information about us and a more detailed list the services we offer, please see our website: www.TheKilbyGroup.com

Gallery LIDAR control project in Alcoa, Tennessee

We have just successfully completed a 30-mile LIDAR project for ALCO/TVA transmission line starting at Alcoa, Tennessee and running southeasterly into the Appalachian Mountains just inside North Carolina at Deal’s Gap (Tail of the Dragon). The project consist of several control points along with two base stations. Due to sporadic cell coverage on the southern portion of the project, we chose to utilize OPUS along with post processing techniques to acquire our control data.

Some pictures from the Project:

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We were excited to be a part of this project and enjoyed our time in Tennessee and North Carolina: the southeastern portion of Tennessee is a very scenic place, a beauty that words cannot fully express, and getting to ride the dragon at night, well do you need to say more. As with any project there are unique challenges but the reward of a successful project along with a happy client makes it worthwhile.

We look forward for the next adventure.
The Kilby Group

Doctrine of Acquiescence – Whitepaper

One of the first things that come to mind when a property dispute arises is adverse possession. A lesser known doctrine (but a more common scenario) is the doctrine of acquiescence. Acquiescence does not require the elements of adverse possession and the time period can be much less. 1 Acquiescence deals with boundary lines and their physical location verses the deed description, unlike adverse possession which deals with title. One could have good marketable title and still be uncertain to the physical location of their boundary lines. 1. O.C.G.A. §44-4-6

Read the full whitepaper here.

A Review of The Bibb-Monroe county boundary line in dispute

The Superior Court rejects the SOS’s notion that Monroe County initiate the statutory process all over again starting with the Grand Jury a second time and with the governor appointing a new surveyor. SOS Kemp’s balk to sign, stamp, and/or record the legal plat of survey ordered by the Governor is no different than if it were some subordinate member of his staff that refused. Just because Kemp is the Department Head, he has no authority to not fulfill his duty. It is his department that must provide the public service, that service being of an administrative nature (ministerial), not a judicial nature.

So when the SOS, Brian Kemp attempted to avoid his statutory responsibility of recording the plat depicting the official boundary line between the counties of Monroe and Bibb…thus as a result that’s exactly why O.C.G.A. § 9-6-20 becomes necessary, to ensues a remedy in a two-pronged test through the writ of mandamus. The statute provides in relevant part “That all official duties should be faithfully performed and whenever from any cause, a defect of legal justice would ensue from a failure to perform or from improper performance, the writ of mandamus may issue to compel a due performance if there is no other specific legal remedy for the legal rights;” and;

O.C.G.A. § 36-3-24 provides that if a protest or exception to the survey and plat is filed in the Secretary of State’s office within 30 days, it shall be the duty of the secretary of state to give, through the mail, ten days written notice of the time when he will hear the protest or exceptions at his office to the county governing authorities of the respective counties. Upon the hearing, the secretary of state shall determine from the law and evidence the true boundary line in dispute between the respective counties.

The Statutes permits the SOS some flexibility as to how he will hear the “protest or exceptions” from the objecting county before determining “from the law and evidence the true boundary line in dispute between the respective counties.” O.C.G.A. § 36-3-24

The proceedings in this case were filed in an action for Judicial Review, filed by Monroe County challenging the action of the SOS in rejecting the survey and plat submitted for recording under the Statute; the (“2011 Action”). The Court dismissed the 2011 Action, finding, pursuant to Early County v. Baker County, 137 Ga. 126, 72 S.E. 905 (1911), that the legislature intended the SOS to perform ministerial acts, and not judicial acts, in determining the true boundary line between disputing counties. The 1Court further concluded that the record in the 2011 Action reveals that on August 9, 2005, Georgia Governor Sonny Perdue III appointed a surveyor, who was found to be independent and qualified to survey the boundary line in accordance with O.C.G.A § 36-3-20. On March 27, 2009, after eight months of work by himself and his crew, the surveyor submitted to Bibb and Monroe Counties and to the SOS, pursuant to the statutory procedure set out in O.C.G.A. § 36-3-22, his completed survey and plat along with a narrative report incorporating his assessment of ancient history records pertinent to the location of the boundary line. Before completing the survey, the surveyor and his crew undertook extensive research and efforts on the ground to identify the beginning and end points of the disputed county line and the “Holt Alteration,” which was created by the Georgia Legislature in 1877 so that the lands of Dr. Holt and his family would be in Bibb County, not Monroe, County.

1The Surveyor took the position that he would not appear and testify until Bibb County had paid him for its portion of the survey fee…over $170,000. The Court does not condone the Surveyor’s refusal to appear until paid. The Court notes, nevertheless, that the SOS, while well aware of the Surveyor’s position did not use the power of his office to obtain Bibb’s portion for the Surveyor’s fee until after oral arguments on May 31, 2011, virtually assuring that the Surveyor would not participate in the process. Furthermore, the SOS rejected the Surveyor’s subsequent attempts to appear and provide input after he was paid. Finally, the SOS denied Monroe County a hearing on reconsideration, when the Surveyor’s resistance to appearing had been resolved.

Pursuant to O.C.G.A. § 36-3-23, Bibb County filed a protest to the survey triggering the SOS’s responsibility to determine the true boundary line, pursuant to O.C.G.A. § 36-3-24. Undertaking her duties, on August 7, 2009, Karen Handel the predecessor to the current SOS, Brian Kemp, chose to refer the boundary dispute to the Office of State Administrative Hearings (“OSAH”) for a preliminary hearing and counsel. OSAH assigned an Administrative Law Judge (ALJ) to the case. On October 9, 2009 the matter was withdrawn from the assigned ALJ and reassigned to a Special Assistant Administrative Law Judge (SAALJ), who was an attorney with real estate experience.

The SOS directed the SAALJ to address four specific issues, which are summarized as follows:

(1) Whether the survey depicts the true boundary line between Bibb and Monroe Counties as established by the Georgia General Assembly; and

(2) Whether the survey accounts for every change in the boundary line between Bibb and Monroe Counties, including all changes made pursuant to the Statute; and

(3) Whether additional evidence exists that may substantially alter or prove support to the results of the survey; and

(4) Whether the methods utilized by the surveyor in conducting the survey were in accordance with applicable principles and industry standards in Georgia.

Bibb and Monroe Counties presented evidence and oral arguments to the SAALJ and the SAALJ issued a detailed Finding of Facts and Recommendations. The SAALJ responded to each of the four questions raised by the SOS, finding for the four specific issues as follows:

1. That the survey does depict the true boundary line between Bibb and Monroe Counties as established by the Georgia General Assembly.

2. That the survey did account for every change in the boundary line between Bibb and Monroe Counties, including all changes made pursuant to the Statute.

3. That no additional evidence has been shown that may substantially alter or prove support to the results of the survey and;

4. That the methods utilized by the surveyor in conducting the survey were in accordance with applicable principles and industry standards in Georgia.

Based on the law and evidence, the SAALJ concluded that the survey is “an accurate description of the true boundary line between Bibb County and Monroe County” and recommended that the SOS accept the survey. Common wisdom provides him with the answer, but no; the current SOS decided after considering the SAALJ’s finding of fact and recommendations, he rejects the SAALJ’s recommendation and just walks out on the survey. In his final determination he asserts that the decision was not subject to appeal, except on the grounds of “fraud and abuse” and that the only way to establish the disputed boundary line was to begin the statutory process all over again from the grand jury level.

Monroe County filed a Motion for Reconsideration, requesting the SOS to reconsider his final determination or hold a new evidentiary hearing. The SOS denied the Motion and the proposal for a new evidentiary hearing. The Court determined that Judicial Review is not an available remedy to challenge the final determination. Nonetheless the Court held that the 2statue gives Monroe County the right to a “definitive boundary line once the SOS concludes the statutory process of hearing, protest and exceptions. O.C.G.A. § 36-3-24”

In Early County v. Baker County, the Supreme Court definitively state as follows:

2 The 1899 statute at issue in Early County involves the exact same delegation of duty to the
SOS…to determine the location of county boundary lines as the statute.

The [1899] statute did not contemplate a lawsuit between the counties; it devised a process by which the line as originally fixed by the Legislature in the formation of the counties, shall be ascertained and made certain…the scope of the legislation is to ascertain the location, which the Legislature has previously established[.]

Early County v. Baker County, 72 S.E. at 906 (emphasis added).

And therein the Court reaffirmed the holdings from the (2011) action, citing that Statute mandates, that at the end of that process the disputing counties have a definitive boundary line. The Court rejected the SOS’s argument that the SOS has discretion, in the exercise of his judgment, to avoid his statutory obligation to set a boundary line by closing the record and rejecting the survey.

And finally, there is no remedy other than mandamus by which Monroe County can adequately obtain the relief it seeks. The court rejects the option proposed by the SOS…that Monroe County initiate the statutory process all over again starting with the Grand Jury a second time and with the governor appointing a new surveyor. The residents of Bibb and Monroe Counties have lived with uncertainty concerning development, allocations of taxes and the jurisdiction of police and fire for decades. These counties have been engaged in the statutory process since 2005, outliving the administration of the governor who appointed the surveyor and spanned the administrations of two secretaries of State.

The purpose of O.C.G.A. § 36-3-20 et seq. is to provide certainty and resolution for counties such as Bibb and Monroe who have devoted eight years and spent roughly two million taxpayer dollars only to arrive back where they started. Furthermore, without the issuance of a mandamus there can be no assurance that initiating another statutory process the second time, the third, etc. would result in the determination of the boundary line, given the SOS’s historic performance. The SOS is specifically charged with determining the county boundary line. Twice the SOS has failed to do so. Accordingly, given these extraordinary circumstances presented by this case, granting a writ of mandamus was warranted. And that is why the court issued a writ of mandamus to the SOS requiring him to comply with O.C.G.A. § 36-3-20 et seq. and establish the Bibb County/Monroe County boundary line by the recording of the March 27, 2009 3Plat by Terry M. Scarborough.

3O.C.G.A. § 36-3-24 states that “[u]pon the making of a decision by the Secretary of State…the Secretary of State shall cause the survey and plat to be recorded in a book to be kept for that purpose, whereupon the same shall be final and conclusive as to the boundary line in dispute.”

Meanwhile residents along the Bibb-Monroe county line are left in shock with suspicion. The SOS continues to delay fulfillment of his ministerial duty of confirming the true boundary line dividing Bibb and Monroe County. The SOS is causing even more cost to the taxpayers by appealing to the Georgia Supreme Court. Why did he do this? Two Judges have fully endorsed the survey ORDERED by the Georgia Governor, Sonny Perdue…the Scarborough Survey!

Providing the Georgia Supreme Court doesn’t send the appeal back to the Superior Court Judge and they agree to hear the SOS’s appeal, the Court’s schedule is late June of 2013. It’s anyone’s guess as to when the Supreme Court’s official opinion will come; certainly it’ll be some subsequent time thereafter.

The $64,000.00 dollar question is…will the SOS comply with O.C.G.A. § 36-3-24 and the Order of the Superior Court Judge, “by causing the survey and plat to be recorded in a book to be kept for that purpose, whereupon the same shall be final and conclusive as to the boundary line in dispute”…or, at the burden of the taxpayers, will the SOS reject the Statutes, the “law of the land” as “treacherous, ambiguous, and antiquated” and thereby leave the appearance of protecting the interests of Bibb County? If he chooses the latter, the SOS may well eliminate any remaining doubt regarding his servitude.

Opening Land Surveying service in the State of North Carolina

Last Monday Keith sat for the 2 hour State Specific (part B) portion of North Carolina\’s Land Surveying Test at the North Carolina Board of Examiners for Engineers and Surveyors office in Raleigh, North Carolina. After passing we are now able to offer land surveying services in North Carolina in addition to the States of Georgia and Tennessee. Located in North East Georgia just North of Atlanta, Georgia, South East Tennessee and South West North Carolina are just hours away thus allowing us to provide our clients with land surveying services in the States of Georgia, Tennessee, and North Carolina.